Two-Year Gap Between Last Use of FMLA Leave And Current Request Insufficient to Break Linkage for Employee Notice Purposes

In Fritz v. Phillips Service Industries, Inc. No. 06-11149, 2008 U.S. Dist. LEXIS 38266 (E.D. Mich. May 12, 2008), the employee requested leave on May 2, 2005, due to right knee pain. Frtiz called and reported that he was unable to work due to his "knee condition." In 2003, PSI had granted Fritz FMLA leave to undergo surgery on his right knee. PSI was also aware that Fritz was scheduled to undergo another surgery on his right knee on May 24, 2005.

On these facts, the court found that PSI had clear notice that Fritz had a serious health condition related to his right knee sufficient to shift the burden of inquiry to the employer to determine whether his May 2, 2005, request may be covered by the FMLA. PSI did not inquire further, but immediately fired Fritz. The employer had argued, unsuccessfully, that it was unreasonable to conclude that PSI should have known that the two events, the 2003 FMLA qualifying surgery and the May 2-3, 2005, were related. The court denied PSI's summary judgment motion.

Comment: The adequacy of an employee's request for leave that may be FMLA-qualifying is judged in light of an employer's institutional memory of the employee's past FMLA usage. Where an employee links their otherwise innocuous current request for leave with a previously recognized FMLA condition, the employee will have satisfied their obligation to reasonably apprise the employer that the leave may be FMLA-qualifying. Such linkage may be established despite the passage of several years since the last time FMLA leave was used.

To comply with the FMLA, employers should ensure that FMLA decision-makers have ready access to information regarding an employee's past FMLA usage in order to determine if their is any linkage with a current leave request. It is doubtful that compartmentalization of this information within an employer will defeat a claim that the employer, as opposed to any one supervisor, was not on notice of the prior, approved FMLA leave usage.

Similarly, employer's should put systems in place so that institutional memory of an employee's past FMLA usage is not lost because a leave administrator or supervisor transfers to another position or leaves the company.